Cracks in the Veneer: the Tea Party Case for Gay Marriage

Beating Boies & Olson and likely Judge Walker (N.D. Cal.) to the punch, yesterday, Judge Tauro (D. Mass), a Nixon appointee, in a set of two cases, invalidated the critical § 3 of the Defense of Marriage Act (DoMA) as violative of the federal Equal Protection Clause, and, wait for it — the Tenth Amendment.

Significantly, the decisions come on plaintiffs’ motions for summary judgment, meaning plaintiffs win on the law, and on the undisputed facts, no trial necessary.

These aren’t garden-variety opinions. Judge Tauro’s opinions don’t just resolve the debate, they succeed by turning the anti-equality movement’s rhetoric against itself. This isn’t a victory; it’s a massacre.

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.

Here, as Judge Tauro points out, is a true case of federal overreach. Tea party conservatives may go too far when characterizing any attempt by the federal government to guide personal decisions as (contradictorily) “socialism,” “fascism,” or “statism”; and they may get it flat wrong where they frame any attempt to preempt state law as contrary to whatever force remains in the Tenth Amendment. But the federal government has, for centuries, deferred to state definitions of marriage, even when applying federal law (Letourneau slip op., at 28-30).

What the Letourneau opinion implies, the Commonwealth opinion renders explicit. Marriage was a state issue at the Founding, and a colonial issue before then (Commonwealth slip op. at 3-8). Even King George’s Parliament left well enough alone. Therefore, any notion that restrictive definitions of marriage are ancient to the Republic, or that the Founders contemplated the federal government writing social policy, fails on an uncontradicted historical record.

These findings compel legal conclusions. If the Founders could not have intended to impliedly federalize marriage law, and provided Congress with no explicit, enumerated power for the regulation of social policy, the whole host of archconservative anti-federalist arguments suddenly acquire the teeth they lack elsewhere. Accordingly, we get passages like this:

It is a fundamental principle underlying our federalist system of government that “[e]very law enacted by Congress must be based on one or more of its powers enumerated in the Constitution.” And, correspondingly, the Tenth Amendment provides that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The division between state and federal powers delineated by the Constitution is not merely “formalistic.” Rather, the Tenth Amendment “leaves to the several States a residuary and inviolable sovereignty.” This reflects a founding principle of governance in this country, that “[s]tates are not mere political subdivision of the United States,” but rather sovereigns unto themselves. [. . . .]

Congress’ powers are “defined and limited,” and, for that reason, every federal law “must be based on one or more of its powers enumerated in the Constitution.” As long as Congress acts pursuant to one of its enumerated powers, “its work product does not offend the Tenth Amendment.”

(Commonwealth slip op. at 22-23) (citations omitted).

But, because “marital status determinations are an attribute of state sovereignty,” not covered by the General Welfare Clause, the Tenth Amendment reserves the power to define domestic relations to the states (Commonwealth slip op. at 29).

This court has determined that it is clearly within the authority of the Commonwealth to recognize same-sex marriages among its residents, and to afford those individuals in same-sex marriages any benefits, rights, and privileges to which they are entitled by virtue of their marital status. The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment. For that reason, the statute is invalid.

This is clever. And it’s clearly right. Federal regulation of state social policy strikes at the core of the general police power, which all American federalisms, ever, have always reserved to the states.

But it might be too clever by half. The equal protection holding in Letourneau is clearly right. When it’s reversed on appeal, it’ll be a travesty, and a mockery of justice. The Tenth Amendment holding in Commonwealth, though, rests on no broad consensus. Should the Obama administration take an appeal from it, their arguments will be ridiculous. But, in dereliction of the rules of both war and appellate advocacy, appellees will be fighting on unfamiliar territory, or at least on a suboptimal battlefield, giving the enemy an advantage they didn’t earn, and don’t deserve.

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23 comments

“But, because “marital status determinations are an attribute of state sovereignty,” not covered by the General Welfare Clause, the Tenth Amendment reserves the power to define domestic relations to the states.”

Okay – I’ll ask the obvious question: If your above statement doesn’t contain any hidden legal meaning, doesn’t that mean that the SC cannot force gay mariage on the country through some potential ruling in the future? Doesn’t that mean that each state should be allowed to decide for themselves on the gay marriage question? What am I missing?

Nope. The Tenth Amendment limits Congress, and the President, not the Court acting within its constitutional role of construing the law. But it does mean that Congress can’t pass a law saying, “every state must allow gay marriages.”

Think of it this way. A Supreme Court ruling on the Clause construes constitutional law, and if banning gay marriage violates the Constitution, that trumps federalism, and the states have no reserved power to discriminate in contravention of federal law.

I understand that Congress could pass a law allowing gay marriage (although we both know that is never going to happen). What I am saying though is that if each state has the right to set the terms for gay marriage within their borders in lieu of an over-riding federal law, how can the SC declare the lack of access for gays to be unconstitional?

Ames, you’re talking in circles. Remember, I’m not a lawyer. Pretend you’re explaining this to your grandmother or something.

You stated above that the states have the right to define domestic relations. I’m asking you, under the CURENT CONDITIONS how could a SC ruling come about which forced all states to accept gay marriage?

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

This is generally understood as adding very little to the document; in a government of enumerated powers, saying “everything not enumerated isn’t” is sort of useless. But it has two uses: preventing Congress/the President from invading the state’s police power, or from commandeering state personnel or facilities.

The police power is the state’s plenary power to control… well, everything. Notions of morality are the core of the police power, if they’re anything. They’re also not reached by any of Congress’ enumerated powers (Commerce/General Welfare, as supplemented by the Necessary and Proper Clause). The federal government can’t control marriage like the federal government can’t write a state’s penal code.

DoMA erases state definitions of marriage and replaces them with a federal one, at least for the purpose of applying federal law. So, there’s something to Judge Tauro’s argument that DoMA violates the Tenth Amendment. It did cut into an area states traditionally control.

Likewise, any congressional statute saying “states MUST respect gay marriage as marriage, for the purpose of federal law,” would run into the same problem. Any statute saying “all states must recognize gay marriage” would be even more blatant — unless that were supported by the Fourteenth Amendment’s Enforcement Clause. Which it might be. Let’s assume for now that it’s not.

What we’ve been talking about so far is the tension between the federal government’s power as a lawmaker, and the state governmments’ powers as the same.

The Supreme Court does not make law. It applies extant law. In constitutional litigation, it applies only one law: the supreme law of the land, the United States Constitution. If the Supreme Court states a holding construing the Equal Protection Clause, the Equal Protection Clause, for all intents and purposes *says* what the Supreme Court says. Court decisions on the meaning of constitutional clauses aren’t subsidiary in some way; they acquire the primacy and dignity of the clauses themselves. So for example, to avoid Loving v. Virginia, which construed the Equal Protection Clause, a state would have to avoid the bloody Constitution. Which they cannot do.

Similarly, if the Supreme Court holds tomorrow that the Equal Protection Clause requires that, if states permit straight marriage, they must also permit gay marriage, that holding becomes incorporated into the duties required of the states under the Fourteenth Amendment. The states ratified the Constitution, and the Fourteenth Amendment. Therefore, they surrendered any power that those amendments require them to surrender. Accordingly, no Fourteenth Amendment holding can conflict with the Tenth Amendment, because the Amendments can literally *never* be in conflict.

I think I have managed to extract the relevant data to my question here:

“…if the Supreme Court holds tomorrow that the Equal Protection Clause requires that, if states permit straight marriage, they must also permit gay marriage, that holding becomes incorporated into the duties required of the states under the Fourteenth Amendment. The states ratified the Constitution, and the Fourteenth Amendment. Therefore, they surrendered any power that those amendments require them to surrender.”

I guess the important take-away for those who oppose gay mariage coming from the federal government is that at least the decision only rests with the SC. Of course, this will make the culture wars surounding the next election all the more heated as the rest of the old guard of the Court reach retirement age.

As a side note: When I was doing public archaeology for the university I used to spend several hours of my day explaining graduate-level theory to kids in the 5th grade. I think they walked away less perplexed than I am by most of your legal comments. There’s got to be a way to explain things that doesn’t make people’s eyes glaze over. Might I suggest Ames that your future clients might appreciate that ability.

We all have our jargon in our respective fields. I could go on a long diatribe about functional group patterning, post molds, middens, pre-historic debitage, etc…but how does this advance a dialogue outside of my colleagues or those amateurs who have bothered to learn the terms?

I’m not much of an Ames apologist, but I thought his explanations were pretty clear and was a little surprised you needed further clarification, given the other conversations you hold your own in (that seem just as complex to me). My 2 cents…

“…the increased production
of socio-technic items in the late Archaic period is
related to an increase in population following the shift to the exploitation of aquatic resources roughly coincident
with the Nipissing high water stage of the ancestral Great
Lakes”

Not exactly. Increased exploitation of aquatic resources meant people stayed in one place, thus population increased (populations are always higher in non-nomadic cultures). When people stay in place they must create tools specifically to deal with their environment. Socio-technic items differ from technomic. This then gives way to ideo-technic items as sedentary cultures become more complex.

…in a government of enumerated powers, saying “everything not enumerated isn’t” is sort of useless.

As yet another historical aside, the primary reason for not adding the Bill of Rights to the Constitution in the first place was a concern among some of the Convention members that they would be interpreted as the only rights the people had. So having the Tenth Amendment in there to specify that this was not the case made good sense at the time.

Also, I had really hoped to go the rest of my life without seeing the words “functional group patternings” ever again. But I guess that was not to be.

The People’s Work…

Marius is a government attorney for a jurisdiction in the New York metropolitan area. His views may coincide with, but do not represent, those of the people of the state of New York, or his former clients.